IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA ON THE 9^th OF NOVEMBER, 2022 MISC. CRIMINAL CASE No. 50400 of 2022 BETWEEN:-

TULSIRAM S/O DUNGARAM JI NAYAK OCCUPATION: BUSINESS, R/O VILLAGE DASIYA TEHSIL AND DISTRICT NEEMUCH (MADHYA PRADESH)

.....APPLICANT (BY MS. ARCHANA MAHESHWARI, ADVOCATE )

AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THROUGH POLICE STATION NEEMUCH KANT DISTRICT NEEMUCH (MADHYA PRADESH)

.....RESPONDENTS (BY MS. GEETANJALI CHOURASIA, PANEL LAWYER)

This application coming on for admission this day, the court passed the following:

ORDER

01. This is second application filed by the applicant under Section 438 of the Code of Criminal Procedure, for grant of anticipatory bail. The applicant is apprehending his arrest in connection with Crime No.641/2022 registered at Police Station Neemuch Kent, Neemuch for an offence punishable under Section 8/18, 25, 29 and 58(2) of NDPS Act.

02. First application bearing M.Cr.C. No.18523 of 2022 was dismissed as withdrawn vide order dated 14.06.2022 with liberty for the applicant to Signature Not Verified Signed by: JYOTI surrender and seek regular bail.

03. Learned counsel for the applicant submits that despite dismissal of the previous application as withdrawn with liberty to surrender and seek regular maintainable. Reliance has been placed by her on the Division Bench decision of this Court in Imratlal Vishwakarma and others vs. State of M.P., M.Cr.C. No. 648 of 1995 decided on 09.02.1996

04. Learned counsel for the respondent/State has submitted that since the previous application of the applicant was dismissed as withdrawn with liberty to surrender and seek regular bail, the second application under Section

438 of the Cr.P.C. is not maintainable.

05. This Court in Omprakash Pandy vs State of M.P., M.Cr.C.

No.49606 of 2022 decided on 07.11.2022 has held in paragraph No.9 as under :

"09. However, in the present case the first application of the applicant was not dismissed as withdrawn simpliciter but was dismissed as withdrawn after being argued at length with liberty for the applicant to surrender and seek regular bail. In my considered opinion, once the applicant had argued his first application at length and had then withdrawn the same by reserving specific liberty of surrendering and seeking regular bail, then the only course open for him is to avail such liberty. He is now precluded from filing a subsequent application under Section 438 of the Cr.P.C as the effect of withdrawal of his first application with liberty to surrender and seek regular bail would be that he had given up his rights to avail the remedy under Section 438 of the Cr.P.C. altogether since he desired to avail the remedy as sought for by him. Had it been a case of the first application having been dismissed as withdrawn simpliciter or having been rejected on merits, second Signature Not Verified Signed by: JYOTI application on ground of change in circumstances would have very much been

10:08:55 AM maintainable but that is not the case here."

06. Thus since the first application of the applicant had been dismissed as withdrawn by reserving specific liberty of surrendering and seeking regular maintainable and is accordingly dismissed as such.

(PRANAY VERMA)

JUDGE jyoti Signature Not Verified Signed by: JYOTI